'Tucker's rule': St. George Tucker and the limited construction of federal power.

AuthorLash, Kurt T.
PositionThe Legacy of St. George Tucker

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond the ordinary memorials of political and military glory." (1) Throughout the Commentaries, Story generously quoted Chief Justice Marshall's great nationalist opinions in McCulloch v. Maryland, (2) Gibbons v. Ogden, (3) and Cohens v. Virginia (4) and used them to construct a thoroughly nationalist reading of the federal Constitution. (5) Along the way, Story seemingly dismantled prior states' rights interpretations of federal power, particularly St. George Tucker's theory of strict construction from his View of the Constitution of the United States. (6) In writing his Commentaries, Story sought to put the final nail in the coffin of the older "compact theory" of the Constitution. (7) Under compact theory, which viewed the document as emanating from the several states instead of a unitary "People" of the United States, any grant of power to the federal government should be narrowly construed to preserve the independence of the sovereign states. (8) As an alternative theory, Story cited Chief Justice Marshall's "forcibly stated" opinion in McCulloch (9) and his own reasoning in Martin v. Hunter's Lessee, (10) which declared "[t]he constitution of the United States ... was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States." (11) Instead of strict construction, Story's reading of the Constitution called for a broad construction of federal powers in order to best serve the (national) purposes of the sovereign people of the United States. (12)

Story's Commentaries has been celebrated as among the most scholarly and influential of the constitutional treatises emerging from nineteenth-century America. In his magisterial The Marshall Court and Cultural Change, G. Edward White devoted substantial attention to Story's Commentaries and his dismantling of the Jeffersonian compact theory of constitutional interpretation. (13) According to Nowak and Rotunda in their introduction to the abridged version of the Commentaries, "[t]he passage of time has vindicated Story's view regarding the basic role of the Constitution." (14) In fact, most scholars today treat Story's work as an exemplary and prescient source of early constitutional understanding. As R. Kent Newmyer asserted, Story's Commentaries "were on the winning side of history." (15)

Given the traditional status accorded to his treatise on the Constitution, it may come as a surprise to learn that his efforts to bury strict construction and establish a wholly nationalist reading of the Constitution ended in failure. Even as he wrote, the jurisprudence of the Marshall Court was under fire, at one point compelling the Chief Justice to publicly defend his opinions in a series of anonymous essays. (16) Marshall's attempts to deepen the nationalist reading of the Constitution first articulated in McCulloch, Cohens v. Virginia, and Gibbons v. Ogden, however, caused a backlash in state assemblies, who responded by proposing constitutional amendments to cabin the seemingly unchecked power of the Supreme Court. (17) By the time Story wrote his Commentaries, (18) the country was embroiled in a full-blown state nullification crisis, and the Supreme Court had begun backing away from its earlier expansionist reading of federal power. (19) Within a few years, Story would find himself a lone dissenter, futilely invoking the ghost of John Marshall as the majority of the Court moved toward a more federalist vision of federal power and state autonomy. (20) Although Justice Story would receive a final opportunity to reassert a nationalist vision of the Constitution prior to the Civil War, (21) the future of nineteenth-century constitutional law belonged to the federalist rule of strict construction. Marshallian nationalism would all but disappear from constitutional jurisprudence for the next one hundred years, surpassed by the state-protective theory of constitutional interpretation. (22)

Today, the opinions of the Supreme Court echo the theory of strict construction first presented in works like St. George Tucker's View of the Constitution and James Madison's Report on the Alien and Sedition Acts. Cases like Gregory v. Ashcroft, (23) New York v. United States, (24) United States v. Lopez, (25) Printz v. United States, (26) Alden v. Maine, (27) and United States v. Morrison (28) all share a common rule of interpretation: federal power must be narrowly construed in order to prevent undue interference with matters best left under state control. In the words of St. George Tucker, the Constitution "is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question." (29)

While the Supreme Court's current narrow construction of federal power appears to be built on the Tenth Amendment, (30) its approach goes well beyond that Amendment's simple declaration that all powers not delegated are reserved. The fact that all nondelegated powers are reserved tells us nothing about how broadly to interpret those powers that are delegated. (31) The apparent lack of textual justification for the Rehnquist Court's rule of narrow construction has provided fodder for critics of the Court's federalism jurisprudence. (32) Even Justice O'Connor conceded that the Tenth Amendment more suggests than demands the Court's federalist rule of construction. (33) Her concession seems to vindicate Justice Oliver Wendell Holmes's derisive comment that limiting federal power to preserve state autonomy seems to be based on "some invisible radiation from the general terms of the Tenth Amendment." (34)

St. George Tucker, however, would have vigorously rejected this criticism. (35) To him, strict construction provided not only the best reading of a document that owed its very existence to the people of the several states; such a reading was positively demanded by its text. (36) Any reading of federal power that unduly interfered with local self-government violated the people's retained rights as declared by the Necessary and Proper Clause, as well as the Ninth and Tenth Amendments. (37) Tucker shared this federalist reading of the Ninth and Tenth Amendments with both the amendments' author, James Madison, and Supreme Court Justice Joseph Story. (38)

Although the original federalist understanding of the Ninth Amendment has been forgotten (until recently), (39) it played a key role in St. George Tucker's explanation of why the Constitution demands strict construction of federal power. Often associated today with attempts to deny individual rights, political players in Tucker's day asserted the rule of strict construction to oppose the Alien and Sedition Acts and, as the national struggle over slavery deepened, the Fugitive Slave Act (albeit unsuccessfully). (40) In fact, throughout the nineteenth and early twentieth century, the Ninth and Tenth Amendments jointly served to preserve the people's retained right to local self-government. (41) Although the rule of strict construction lost judicial support during the New Deal, it reappeared in the federalist jurisprudence of the Rehnquist Court. (42) Most recently, federal courts have strictly construed federal power in order to preserve the right of Californians to authorize medicinal use of marijuana (43) and the right to physician-assisted suicide. (44) Thus, the time seems ripe for a reassessment of the textual and historical roots of the rule of strict construction and its first scholarly articulation in St. George Tucker's View of the Constitution.

I begin by exploring the textual roots of Tucker's rule, focusing on the drafting, adoption, and early application of the Ninth and Tenth Amendments. Next, I discuss the most serious challenges to Tucker's rule: John Marshall's nationalist reading of the Constitution and Joseph Story's Commentaries on the Constitution. The penultimate section looks at the rollback of Marshallian nationalism and the restoration of the rule of strict construction that occurred when Chief Justice Taney took the reins of the Supreme Court. The Article concludes with an acknowledgment of the remarkable longevity of Tucker's Rule.

  1. THE RULE OF STRICT CONSTRUCTION

    In the appendix to his edition of Blackstone's Commentaries, St. George Tucker added a series of essays on American constitutional law. (45) There, he confronted one of the critical constitutional issues in the first republic--the proper rules of constitutional interpretation. (46) Nationalists, like Alexander Hamilton, read the Constitution as emanating from a unitary mass known as the People of the United States. (47) Tucker, on the other hand, saw the Constitution as a compact entered into by the independent sovereign people of the several states. (48) On this singular distinction turned the issue of how to construe delegated federal power. As independent sovereigns, any agreements entered into by the states should be read with the presumption that the states retained their sovereign powers in all matters not expressly delegated to the federal government. To Tucker, the Constitution itself affirmatively established this presumption and the rule of strict construction through the adoption of the Ninth and Tenth Amendments.

     Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn into question [citing the Tenth Amendment]; as a social compact it ought likewise to receive the same strict construction, wherever the right of personal
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